Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

Nos. 04-13-00390-CR through 04-13-00392-CR

David LOVEN,

Appellant

v.

The State 

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court Nos. 2013-CR-3348, 2013-CR-3349 & 2013-CR-3350

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Rebeca C. Martinez, Justice

Delivered and Filed: October 15, 2014

AFFIRMED 

In three related cases, Loven appeals his convictions for super aggravated sexual assault of 

a child, indecency with a child, sexual performance by a child, and possession of child 

pornography. We affirm the trial court’s judgment in all three cases.

BACKGROUND

Loven was indicted on multiple counts in three cases involving two known complainants 

and one unknown complainant. In Trial Court Cause No. 2013-CR-3348 involving complainant 

K.N., who was a child under the age of 17 years old, Loven was charged with eleven counts 
04-13-00390-CR through 04-13-00392-CR

consisting of one count of indecency with a child by sexual contact, one count of sexual 

performance by a child, and multiple counts of possession of child pornography. In Trial Court 

Cause No. 2013-CR-3350 involving complainant P.T., who was a child under the age of 6 years 

old, Loven was charged with thirty-six counts consisting of one count of super aggravated sexual 

assault of a child, several counts of sexual performance by a child, and multiple counts of 

possession of child pornography. The case involving unknown complainants consisted of fortyfive counts of possession of child pornography under Trial Court Cause No. 2013-CR-3349. The 

three cases were consolidated for purposes of trial upon Loven’s request. Loven pled not guilty 

by reason of insanity to each count.

At trial, the two known victims, P.T. and K.N., who were not related, testified that Loven 

was a family friend who began sexually assaulting them and taking photographs of them at ages 

four and seven, respectively. P.T., six years old at the time of trial, testified that Loven touched 

and licked her private part “in the front where she pees” and took pictures of her front private part. 

P.T.’s mother testified as an outcry witness that Loven had been a close family friend for 25 years 

and spent a lot of time with her children, especially P.T. On New Year’s Eve night of 2011, P.T. 

told her mother that Loven had put his hand between her legs outside her clothing and “pushed 

really, really hard,” and had previously licked her vagina, and taken pictures of her with her pants 

pulled down in exchange for Hello Kitty gifts. A DVD of P.T.’s forensic interview with Caroline 

Briones at Child Safe was admitted and played for the jury. Dr. John Melville, a child abuse 

pediatrician at the Center for Miracles, testified that when he interviewed P.T. she was not 

forthcoming and did not state that any abuse or photographs occurred. Dr. Nancy Kellogg, a child 

abuse pediatrician at the same facility, testified that during the sexual assault examination P.T. 

stated that Loven made her privates hurt by touching them outside her clothes. P.T. demonstrated 

by making a stroking motion and pointing to her genitals. The physical exam of P.T. showed a 

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labial adhesion which is a common finding in young children that can be caused by hygiene habits, 

irritation, or any kind of trauma.

K.N., who was 21 years old at the time of trial, testified that she met Loven when she was 

five years old and that he treated her like his own daughter, helping her with homework and taking 

her out for dinner and ice cream. However, when she was seven or eight years old, Loven began 

taking pictures of her in sexually provocative poses; a couple of times he pulled her pants down 

for the picture. Loven progressed to touching her vagina over her clothes and then under her 

clothes. K.N. never told anyone and last saw Loven when she was fourteen years old. Detectives 

testified that a search of Loven’s house yielded multiple photographs, video tapes, and computer 

images of P.T. and K.N. in various sexual poses and performances. Also seized were notebooks 

with written notes describing the images and listing P.T.’s and K.N.’s names along with other 

girls’ names, and listing Hello Kitty items and other items bought along with their prices. There 

were also written entries by Loven describing his thoughts about his sexual abuse of P.T. and 

taking pictures of P.T. in sexual poses. Plastic bags containing panties and locks of hair with the 

names “P.T., four years old,” and “K.N., 10 years old” written on top were also recovered inside 

Loven’s home. 

After the State rested, Loven called Dr. Brian Skop as a defense witness. A court-appointed 

psychiatrist, Dr. Skop examined Loven prior to trial and found him both competent to stand trial 

and sane at the time of the offenses. The trial court granted the State’s motion in limine on any 

hearsay statements made by Loven to Dr. Skop as outside the scope of the hearsay exception for 

out-of-court statements made for purposes of medical diagnosis or treatment. See TEX. R. EVID.

803(4). Dr. Skop proceeded to testify that, in his opinion, Loven suffered from several mental 

disorders, including personality, mood, and anxiety disorders, as well as pedophilia, but was not 

legally insane at the time of the charged conduct.

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The jury found Loven guilty on all eighty-eight counts submitted to them. At the 

conclusion of the punishment hearing at which additional child pornography images were admitted 

and K.N. testified about the negative effect of Loven’s conduct on her life, the jury recommended 

the maximum punishment on each count. The trial court assessed the maximum sentence on each 

count, with the sentences ranging between 10 years’ imprisonment to life without parole. The 

court denied the State’s request to run the sentences consecutively. Loven now appeals.

ANALYSIS

Loven raises two issues on appeal, asserting he received ineffective assistance of counsel 

at trial and that the trial court erroneously disallowed a proper question posed on voir dire.

Ineffective Assistance of Counsel

To establish ineffective assistance, Loven has the burden to prove that his trial counsel’s 

performance was deficient and that it prejudiced his defense, in that there is a reasonable 

probability that, absent counsel’s errors, the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Perez v. State, 310 S.W.3d 890, 892-93 

(Tex. Crim. App. 2010). Loven must provide a sufficient record that affirmatively demonstrates 

ineffective assistance by a preponderance of the evidence, and overcomes the strong presumption 

that counsel’s conduct fell within the wide range of reasonable professional assistance. Salinas v. 

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. 

Crim. App. 1999). To establish deficient performance, Loven must show that counsel’s 

performance fell below an objective standard of reasonableness and must rebut the presumption 

that counsel’s decisions were based on sound trial strategy. Thompson, 9 S.W.3d at 812-13. In 

evaluating counsel’s performance, we do not focus on isolated acts or omissions, but review the 

totality of counsel’s representation. Id. at 813. Failure to prove either prong of the Strickland test 

will defeat an ineffective assistance claim. Id.; Perez, 310 S.W.3d at 893. The standard for 

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reviewing counsel’s performance has never been interpreted to mean a defendant is entitled to 

“errorless or perfect counsel.” Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio 

2008, no pet.) (quoting Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)).

Loven did not file a motion for new trial raising ineffective assistance, and therefore the 

record was not developed as to the reasons underlying counsel’s conduct. See Thompson, 9 S.W.3d 

at 813. Loven acknowledges the difficult task of establishing ineffective assistance on direct 

appeal based solely on the trial record, but contends that, in this case, the absence of a record 

exploring the reasons underlying counsel’s conduct is not fatal to his claim. See Freeman v. State,

125 S.W.3d 505, 506 (Tex. Crim. App. 2003) (stating the likelihood that the trial record is 

inadequate for purposes of ineffective assistance claim, but recognizing that some claims are 

properly disposed of on direct appeal where the ineffectiveness is “so apparent from the record”);

see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (noting that absent any 

evidence of counsel’s reasons for the challenged conduct, the court will “commonly assume a 

strategic motivation if any can possibly be imagined,” and will not find deficient performance 

unless the challenged conduct was “so outrageous that no competent attorney would have engaged 

in it”). Loven asserts there could be no plausible strategic reason for counsel’s conduct in (1) 

failing to present any substantive evidence in support of his insanity defense, and (2) failing to 

preserve error with respect to the court’s denial of a defense challenge for cause during voir dire.

1. Failure to Present Evidence in Support of Insanity Defense

Loven argues that his counsel’s performance was deficient because he failed to present any 

substantive evidence to establish Loven’s defense of insanity. Specifically, Loven asserts his 

counsel failed to seek out and present potential witnesses in support of Loven’s claim that he was 

insane at the time of the offenses. See Smith v. State, 894 S.W.2d 876, 880 (Tex. App.—Amarillo 

1995, pet. ref’d) (general duty to seek out and interview potential witnesses). A defendant is 

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generally presumed to be sane and bears the burden of proof when raising the affirmative defense 

of insanity. TEX. PENAL CODE ANN. § 8.01(a) (West 2011); Martinez v. State, 867 S.W.2d 30, 33 

(Tex. Crim. App. 1993). To establish an insanity defense, a defendant must prove by a 

preponderance of the evidence that, at the time of the charged conduct, he did not know that his 

conduct was wrong due to a severe mental disease or defect. TEX. PENAL CODE ANN. § 8.01(a); 

Martinez, 867 S.W.2d at 33. “Wrong” means illegal in the context of the insanity defense. Ruffin 

v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008). If the defendant knows that his conduct is 

illegal by society’s standards, then he understands his conduct is “wrong,” even if, due to a mental 

disease or defect, he thinks his conduct is morally justified. Id. The issue of insanity is ultimately 

a determination to be made by the jury, with respect to the credibility of the witnesses, the weight 

of the evidence, and the limits of the defense itself. TEX. CODE CRIM. PROC. ANN. art. 46C.151 

(West 2006); Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994).

After Loven gave notice of his intent to raise an insanity defense, the trial court appointed 

Dr. Skop as an objective expert to examine Loven and to testify at trial. See TEX. CODE CRIM.

PROC. ANN. art. 46C.101 (West 2006). As noted, Loven’s counsel called Dr. Skop as a defense 

witness. While Dr. Skop testified that, based on his evaluation of Loven in September 2012, his 

opinion was that Loven was competent to stand trial, he acknowledged that it was possible Loven’s 

condition could deteriorate to the point of incompetence. Dr. Skop also acknowledged under 

questioning that, even though his opinion was that Loven was sane, i.e., knew his actions were 

wrong, at the time of the charged conduct, another psychiatrist could form a different opinion. Dr. 

Skop explained his diagnosis that Loven suffered from personality disorder, anxiety disorder, and 

mood disorder, as well as from stimulant abuse. Dr. Skop also stated that his review of Loven’s 

medical records revealed that Loven self-reported as having bipolar disorder. Dr. Skop stated that, 

in his opinion, the symptoms Loven discussed during the interview did not support a diagnosis of 

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bipolar disorder. In response to a subsequent question from defense counsel, Dr. Skop later 

acknowledged that Loven’s records showed that the Social Security Administration had designated 

Loven as bipolar. Defense counsel also questioned Dr. Skop about sexual obsessions and 

compulsions, and elicited his opinion that Loven had a sexual attraction to young children, which 

is a mental condition known as pedophilia for which treatment protocols exist. Thus, the record 

shows Loven’s counsel did present evidence of the various mental conditions from which Loven 

suffered. In addition, the court’s jury charge included the option to find Loven “not guilty by 

reason of insanity” on each count, showing that the trial court determined there was competent 

evidence raising the issue of Loven’s insanity. See TEX. CODE CRIM. PROC. ANN. art. 46C.151(a) 

(providing that the issue of the defendant’s sanity shall be submitted to the jury “only if the issue 

is supported by competent evidence”).

Loven complains that defense counsel made no attempt to re-visit the admission of certain 

out-of-court statements he made to Dr. Skop after the trial court granted the State’s motion in 

limine as to any hearsay statements by Loven during the interview. To the contrary, the record 

shows that Loven’s counsel argued to the court that the State opened the door to Loven’s hearsay 

statements during its cross-examination of Dr. Skop; the trial court, however, disagreed.

Loven also complains that defense counsel failed to present any additional witnesses or 

evidence in support of his insanity defense. Loven fails to identify any potential witnesses and 

show their availability to testify and that their testimony would have been beneficial to his defense. 

See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004); Vasquez v. State, 2 S.W.3d 355, 

361 (Tex. App.—San Antonio 1999, pet. ref’d). The record reflects that another defense witness, 

Jesse Fator, was expected but failed to show up at trial. Loven asserts his counsel was deficient in 

failing to ensure Fator’s appearance by subpoenaing him. However, Loven’s counsel stated on the 

record that he had called Fator that morning and Fator had confirmed that he would be in court at 

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10:30 a.m. Based on the record, counsel had no reason to believe a subpoena was necessary to 

secure Fator’s appearance. In addition, Loven has failed to show how Fator’s testimony would 

have benefitted him. See White, 160 S.W.3d at 52; Vasquez, 2 S.W.3d at 361.

Loven has failed to rebut the strong presumption that counsel’s performance fell within the 

wide range of reasonable professional assistance, and has thus failed to establish deficient 

performance. See Salinas, 163 S.W.3d at 740. 

2. Failure to Preserve Error – Denial of Challenge for Cause

Loven asserts the trial court erroneously denied his challenge for cause to Venire Member 

No. 36, but that his counsel failed to preserve the error for review and therefore rendered 

ineffective assistance.

Article 35.16 of the Code of Criminal Procedure provides several grounds on which a 

defendant may challenge a potential juror for cause, including a bias or prejudice against the 

defendant or against the applicable law. TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (c)(2) 

(West 2006). The test is “whether a bias or prejudice would substantially impair the venire 

member’s ability to carry out the juror’s oath and judicial instructions in accordance with the law.” 

Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). The proponent of the challenge for 

cause has the burden to establish that the venire member understands the requirements of the law 

and cannot overcome his or her prejudice well enough to follow the law. Id. (noting the law must 

be explained to the venire members and they must be asked whether they can follow that law, 

regardless of their personal views). Denial of a proper challenge for cause is error. Johnson v. 

State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). The trial court’s ruling on a challenge for cause is 

reviewed with considerable deference to the court’s position in evaluating the venire member’s 

demeanor and responses and may be reversed only for a clear abuse of discretion. Davis, 329 

S.W.3d at 807; Gardner v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App. 2009). Harm is 

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demonstrated, and the error is reversible, when the record shows the defendant: (1) asserted a clear 

and specific challenge for cause; (2) exercised a peremptory challenge on the venire member whom 

the court erroneously failed to excuse for cause; (3) exhausted all of his peremptory challenges; 

(4) was denied a request for additional peremptory challenges; and (5) identified an objectionable 

venire member who sat on the jury. Davis, 329 S.W.3d at 807; Johnson, 43 S.W.3d at 5-6.

Loven challenged Venire Member No. 36 for cause based on a bias or prejudice against 

him and the applicable law arising out of her personal experiences in working with child abuse 

victims. The venire member vacillated in her answers, first stating that her experience with child 

abuse victims undermined her ability to be impartial in a child sex abuse case, then stating she 

could follow the law requiring her to find Loven “not guilty” if the State failed to meet its burden 

of proof, then stating she could not follow the law requiring her to consider probation, and then 

agreeing she could consider probation in certain abuse cases, and finally stating, “But I’d rather 

just not.” In denying Loven’s challenge for cause, the trial court explained that, “I’m not getting 

on her answers that that means she has already made up her mind or that she’s already biased 

against your client. I am getting that she would rather not serve, but that’s not sufficient for me to 

decide to grant the challenge for cause. . . .” When a venire member’s answers are “vacillating, 

unclear, or contradictory,” the trial court’s ruling on the challenge for cause is given particular 

deference. Davis, 329 S.W.3d at 807; Gardner, 306 S.W.3d at 296. Loven has not shown that the 

court’s denial of his challenge for cause was a clear abuse of discretion based on the record of the 

voir dire exchange; therefore, he has failed to show his counsel was deficient in not requesting 

additional peremptory challenges.

Further, even if the court’s ruling was error, Loven has not identified an objectionable juror 

who was seated on the jury, which is one of the factors necessary for bringing a successful 

challenge-for-cause claim. See Davis, 329 S.W.3d at 807; Johnson, 43 S.W.3d at 5-6. Therefore, 

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defense counsel’s failure to request additional peremptory challenges is not the sole factor 

precluding Loven from prevailing on his challenge-for-cause issue.

We conclude that Loven has failed to establish that his counsel rendered deficient 

performance under either of the grounds he alleges. Because Loven has failed to prove the first 

prong of the Strickland test, his claim of ineffective assistance fails. Thompson, 9 S.W.3d at 813; 

Perez, 310 S.W.3d at 893.

Improper Commitment Question on Voir Dire

In his second issue, Loven argues that the trial court improperly ruled that a question posed 

by defense counsel to a prospective juror was an improper commitment question. We apply an 

abuse of discretion standard to a trial court’s ruling restricting voir dire questioning. Hernandez 

v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012). The trial court has discretion to restrict 

voir dire questions that are “confusing, misleading, vague and broad, or are improper commitment 

questions.” Id.; Barajas v. State, 93 S.W.3d 36, 38-39 (Tex. Crim. App. 2002). A commitment 

question asks a prospective juror to resolve, or refrain from resolving, an issue in a particular way 

based on a particular fact. Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011); see 

Hernandez, 390 S.W.3d at 315-16 (holding question was improper commitment question because 

it sought a “yes” or “no” answer and committed the prospective juror to a determination of whether 

a particular circumstance, being abused as a child, was mitigating ). Commitment questions 

usually require a “yes” or “no” answer. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 

2001). Commitment questions are proper only where the applicable law requires a certain 

commitment from jurors, such as considering the full range of punishment. Id. at 181.

During defense counsel’s voir dire of Venire Member No. 14, the following exchange 

occurred:

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Q: One of the disabilities that you mentioned, . . . was autism?

A: Yes.

Q: Okay. You understand that autism, there’s a wide spectrum from very mild 

to completely - - kids that are incapable of speech, of basically anything?

A: Yes.

Q: So that would be certainly a mental disease or defect that you would 

consider someone with that level of capacity being prosecuted, correct?

A: Yes.

The State objected to the last question as being an improper commitment question, and the trial 

court sustained the objection. Loven argues on appeal that the challenged question was not, in 

reality, a commitment question because, although it asked for a “yes” or “no” answer, it merely 

sought to explore the venire member’s experiences and beliefs regarding of autism1 and did not 

ask the prospective juror to commit to resolve an issue a certain way.

Regardless of whether the question was a true commitment question, there was no abuse 

of discretion because defense counsel was permitted to ask the venire member an almost identical 

question concerning autism, with the addition of a qualifier based on the degree of severity:

Q: But you understand that autism is a mental disease or defect that could, 

depending on the severity of it and the fact situation be such that it would render a 

person incapable of being able to distinguish right from wrong?

A: Depending on the severity - -

Q: Sure.

A: - - it could. The reason why I say that is because I know someone with 

autism, but they’re also mentally retarded as well as autistic.

The record shows the trial court merely sustained an objection to the form of Loven’s 

question, and did not place an absolute restriction on the subject area of the excluded question. 

1 No evidence was presented at trial that Loven suffers from autism.

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See Hernandez, 390 S.W.3d at 316. Loven’s counsel was able to probe the prospective juror’s 

beliefs and experiences on the subject of autism; therefore, there was no abuse of discretion. Id.; 

see Howard v. State, 941 S.W.2d 102, 108-12 (Tex. Crim. App. 1996), overruled on other grounds,

424 S.W.3d 535 (Tex. Crim. App. 2014) (where defendant was permitted to question venire 

members regarding the substance of the restricted questions, although in a different form, there 

was no abuse of discretion).

Conclusion

Based on the foregoing reasons, we overrule Loven’s issues on appeal and affirm the trial 

court’s judgments.

Rebeca C. Martinez, Justice

DO NOT PUBLISH

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